It sounds almost like a scam, or a very aggressive legal advertisement: Gay? Discriminated against? You—yes, you!—may be eligible to collect a small fortune from the federal government today.
But it’s no scam. The Biden administration is paying out substantial sums of money to the surviving partners of same-sex couples who were denied the right to marry. No one knows exactly how many people are eligible, though the best estimate reaches into the thousands (at a minimum), and the pot of money stretches into the millions. Unfortunately, few of these individuals know they’re entitled to these payouts, and many are elders of advanced age. So LGBTQ groups are in a race against time to identify and assist this population in vindicating their constitutional rights before it’s too late.
Lambda Legal, the organization leading this campaign, laid the groundwork in two lawsuits filed during Donald Trump’s presidency. Both challenged the Social Security Administration’s denial of survivor’s benefits to individuals affected by same-sex marriage bans, which have been unenforceable since the Supreme Court found them unconstitutional in 2015’s Obergefell v. Hodges. The first suit was filed on behalf of widows and widowers who could never marry because their same-sex partners died before same-sex marriages were legalized. The second was filed on behalf of widows and widowers who were married for less than nine months before their same-sex partner died. Typically, survivor’s benefits are only available if the marriage lasted more than nine months. But if an unconstitutional law prevented the couple from marrying until the end of one partner’s life, Lambda argued, the government had an obligation to alter this rule.
In each case, a federal judge agreed that the denial of survivors’ benefits violated the Constitution. These judges ordered immediate payouts to the individual plaintiffs and certified nationwide class actions on behalf of every other LGBTQ person injured by this exclusionary policy. Predictably, the Trump administration dragged its feet in paying out benefits to the plaintiffs and appealed the class actions, attempting to quash them. (Scholars of the 2020 election will be interested to know that Jeffrey Bossert Clark led the appeal just weeks before plotting a coup at the Justice Department.)
Once President Joe Biden entered the White House, however, the Department of Justice started to sing a different tune. On Nov. 1, 2021, the DOJ settled the cases, dismissing the appeals. The timing was propitious: Four months earlier, Biden fired Andrew Saul—Trump’s terrible commissioner of the Social Security Administration—and replaced him with Kilolo Kijakazi, an LGBTQ-friendly progressive. With Biden’s officials in place, the federal government is eager to start paying out survivor’s benefits to victims of anti-gay discrimination.
How much money are we talking about? The short answer is: a lot. Survivors can start collecting benefits at 60, or 50 if they’re disabled. Survivors applying for the first time will receive monthly payments moving forward; the number varies based on the deceased partner’s earnings, and gets higher when the recipient has reached full retirement age. As of August, it averaged around $1,250 a month. If a survivor applied previously and was denied, they will be paid a lump sum upfront—providing retroactive benefits going back the date of their application—in addition to the monthly checks.
A New York Times report provided a good example of how these benefits cash out. Anthony Gonzales and Mark Johnson lived together in New Mexico for 16 years before they were finally able to marry in 2013. Johnson died in 2014. Gonzales applied for survivor’s benefits six years ago, facing swift rejection. Recently, thanks to the settlement between Lambda and Biden, he received a $90,000 retroactive payment, as well as an $1,800 monthly check.
Some survivors might assume they aren’t eligible because they never actually got married. But the Social Security Administration has trained its staff to gauge whether a survivor would have been married but for the unconstitutional marriage ban. Among other factors, they look at whether the couple was in a committed relationship, lived together or owned property together, supported each other financially, raised children together, or held a commitment ceremony. No single factor determines the outcome; it’s a flexible standard meant to accommodate for the restraints that anti-gay animus imposed on same-sex couples. Applicants can provide documentation, and if they’re turned down, they have an opportunity to appeal.
So far, the Social Security Administration has identified 700 people who previously applied for, and were unconstitutionally denied, survivor’s benefits. Lambda attorney Peter Renn told me that number “only represents the tip of the iceberg, because the overwhelming majority of people who were never able to marry, understandably, never applied for benefits generally dependent on marriage, believing that to be futile.” Renn said “thousands of surviving same-sex partners are potentially sitting on millions of dollars in survivor’s benefits, for which their loved ones already paid, and which could dramatically impact their everyday lives.”
The number of eligible survivors gets smaller every year. By definition, only elders qualify for these benefits; it is quite possible that many will die before receiving the money owed to them. The responsibility to identify beneficiaries and help them claim their money now falls on the LGBTQ community and its allies.
When the Supreme Court brought marriage equality to all 50 states, it did not end the battle for same-sex couples’ equality under law. Both the Obama and Trump administrations tried to deny citizenship to certain children born abroad to gay American citizens. In 2020, Indiana’s Republican attorney general asked the Supreme Court to let states strip rights from same-sex parents, rendering them legal strangers to their own children. One year earlier, Alaska attempted to deny equal benefits to same-sex military spouses, maintaining an official policy that deemed these couples unmarried.
And, right up until 2021, the federal government’s official position remained that it must abide by unconstitutional marriage bans in denying survivor’s benefits. It is heartening to see the Biden administration abolish this policy and provide redress to its victims. These steps will directly improve thousands of LGBTQ elders’ lives. They should also remind us all that no amount of money can make up for decades of cruel and unlawful anti-gay discrimination.